Regulating animal welfare to promote and protect improved animal welfare outcomes under the Australian Animal Welfare Strategy - By Geoff Bloom To ...
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Regulating animal welfare to promote and protect improved animal welfare outcomes under the Australian Animal Welfare Strategy By Geoff Bloom To be delivered at AAWS International Animal Welfare Conference Gold Coast, 1 September 2008
Contents
1. Introduction .......................................................................................................... 4
2. Summary .............................................................................................................. 5
2.1 Introduction.................................................................................................. 5
2.2 Considerations for regulating animal welfare............................................... 5
2.3 The Australian Animal Welfare Strategy ...................................................... 7
2.4 The case for regulating animal welfare ........................................................ 7
2.5 Politics and regulation ................................................................................. 8
2.6 Regulatory approach ................................................................................... 8
2.7 Forms of regulation...................................................................................... 8
2.8 Five Considerations for Regulators ........................................................... 10
3. Considerations for regulating animal welfare ................................................. 10
3.1 Definitions.................................................................................................. 10
3.2 Direct and indirect interests in animal welfare ........................................... 16
3.3 Interests other than animal welfare............................................................ 17
3.4 Multiple jurisdictions .................................................................................. 18
3.5 International considerations....................................................................... 19
4. The Australian Animal Welfare Strategy.......................................................... 21
5. The case for regulating animal welfare............................................................ 22
5.1 Making the case for regulating animal welfare........................................... 22
5.2 The modern interest in animal welfare....................................................... 23
5.3 Community wide agreement on animal welfare principles ......................... 24
5.4 Animal welfare as a subject of protective regulation.................................. 25
5.5 Inadequacy of private or third party litigation ............................................. 26
5.6 Inadequacy of the market .......................................................................... 27
6. Politics and regulation ...................................................................................... 28
7. Regulatory approach ......................................................................................... 30
8. Forms of regulation ........................................................................................... 32
8.1 Administrative vs criminal approach .......................................................... 32
8.2 Regulation by license ................................................................................ 36
8.3 Disclosure and labelling............................................................................. 37
8.4 Non-government standards ....................................................................... 38
8.5 Co-regulation ............................................................................................. 39
8.6 Regulating the regulators........................................................................... 40
9. Conclusion: Five Considerations for Regulators............................................ 41
10. Bibliography ..................................................................................................... 42
2Abstract
This paper applies general thinking and practices about regulation within
Western liberal democracies to the subject of regulating animal welfare. It
focuses on how animal welfare might be regulated to promote and protect
improved animal welfare outcomes consistent with the Australian Animal Welfare
Strategy. Specific features of animal welfare must be understood in order to
regulate it, like the inability of animals to represent their own interests, the other
interests contiguous with animal welfare and the effect of the international trade
rules on domestic animal welfare regulation.
Non-regulatory mechanisms are inadequate alone to secure consistent animal
welfare outcomes. Regulating animal welfare has been a political process, with
stakeholders pressing their differing claims with variable reference to existing
knowledge.
Past and existing attempts to regulate animal welfare have treated animal cruelty
and animal welfare as one topic to be regulated in the same way but they are
better treated as two topics, to be regulated in different ways. Regulation can
generally take a legal process approach of command and control, or a social
process approach of cooperative regulator-industry problem solving.
It may better achieve animal welfare outcomes to shift regulation of animal
welfare from a legal process approach to a social process approach, leaving anti-
cruelty offences regulated according to legal process. Different regulatory forms
may suit different animal welfare issues, including licenses, disclosure, labelling,
non-government standards, co-regulation and regulating the regulators. Five
Considerations for Regulators are proposed.
Geoff Bloom runs Geoffrey Bloom & Associates (www.gbloom.com.au), a specialist
practice providing legal and policy services to the health and animal sectors. Geoff advises
government and industry on legal issues in complex ethical, organisational and regulatory
areas. Geoff taught the first Animal Law course in Australia in 2005, at the University of
NSW.
Acknowledgments
This paper was commissioned by the Department of Agriculture, Forestry and Fisheries
(DAFF) as part of the Australian Animal Welfare Strategy (AAWS). It has been produced
through a collaborative process between the author and representatives of DAFF and the
AWWS Advisory Committee, following a common AAWS approach. It does not represent the
official views of DAFF or the AAWS Advisory Committee. Thanks to Laura Budd, Ivan
Caple, John Drinan, David Favre and Allan Sheridan for their considerable input and
contributions in the development of this paper. Without their help, this paper would be
substantially the poorer in scope and outlook.
31. Introduction
This paper applies thinking and practice about regulation within Western liberal
democracies like Australia to the subject of regulating animal welfare. In particular,
this paper discusses how animal welfare might be regulated to promote and protect
improved animal welfare outcomes consistent with the Australian Animal Welfare
Strategy (AAWS). This paper is about the form rather than the content of animal
welfare regulation.
While much has been written about the possible principles, content or outcomes of
regulation of animal welfare, little has been written about the form that regulation on
this topic should take.1 While this topic may receive incidental attention in
discussions of principles, content or outcomes, it deserves attention as a topic in its
own right. The same principles, content or desired outcomes may animate a civil
right to sue for compensation, an administrative or regulatory regime or criminal laws
or, at the non-regulatory end of the behaviour change spectrum, an education
campaign or a regime of self-regulation. It matters greatly to the process and the
outcomes of animal welfare, however, which form a regulation or other method of
behaviour change takes.
This paper looks first at specific features of animal welfare which must be
understood in order to regulate it, like the inability of animals to represent their own
interests, the other interests contiguous with animal welfare and the effect of the
international trade rules on domestic animal welfare regulation. After reviewing the
aspects of the AAWS relevant to the topic of regulating animal welfare, this paper
seeks to identify when it may be appropriate to regulate animal welfare, noting both
that regulation should be as limited as possible to achieve desired aims and that
non-regulatory mechanisms alone are not sufficient to ensure positive animal
welfare outcomes.
Developing and administering regulation is not just a policy process, it is a political
process. While animal welfare has not tended to be a party political issue, in the past
decades it has been actively contested by different sectors of the community, most
notably animal use industries and the animal protection movement.
Past and existing attempts to regulate animal welfare have treated animal cruelty
and animal welfare as one topic, largely deserving the same form of regulation. This
approach may have impeded securing both reduced animal cruelty and improved
animal welfare. This paper suggests that it would be better to treat animal cruelty
and animal welfare as two separate, albeit related, topics, and to use different forms
of regulation in each case. Regulation can generally take a legal process approach
of command and control, or a social process approach of cooperative regulator-
industry problem solving. It may better achieve animal welfare outcomes to shift
regulation of animal welfare - applying as it does to the heterogeneous socially
1
Radford (2001) is one of the few who devotes substantial attention to this topic.
4sanctioned activities constituting the lawful use of animals - from a legal process
approach to a social process approach, leaving anti-cruelty offences regulated
according to legal process through the criminal law.
Given the effect that different forms of regulation may have on animal welfare
processes and outcomes, it is necessary to consider the different regulatory options
that may suit different animal welfare issues, including licenses, disclosure, labelling,
non-government standards, co-regulation and regulating the regulators. The paper
concludes by proposing Five Considerations for Regulators, in the same vein as the
Five Freedoms commonly claimed to apply to the handling of animals.
This paper includes in its scope regulation of all animal welfare issues, but it focuses
on animals in agriculture. This focus is due to the fact that nearly all animals in
contact with humans are agricultural animals (Wolfson and Sullivan, 2004, 206) and,
for related reasons, that regulations pertaining to animals in agriculture are far more
detailed and developed than regulations pertaining to other animal use sectors.
Where State and Territory regulation is discussed, New South Wales regulation is
taken as the example. While regulation is by no means uniform across Australian
jurisdictions, the New South Wales regulatory regime is sufficiently similar to those
of the other States and Territories for the purposes of this paper.
2. Summary
2.1 Introduction
This paper applies thinking and practice about regulation within Western liberal
democracies like Australia to the subject of regulating animal welfare. In particular,
this paper discusses how animal welfare might be regulated to promote and protect
improved animal welfare outcomes consistent with the Australian Animal Welfare
Strategy (AAWS). This paper is about the form rather than the content of animal
welfare regulation.
2.2 Considerations for regulating animal welfare
Definitions
‘Animal welfare’ may be defined differently depending on the context, whether
scientific, legal or otherwise. Definitions may be performance based (or the welfare
outcome achieved) or systems based (or the means by which the welfare outcome is
achieved). Systems are often easier to assess (and so regulate) but do not
necessarily produce the desired outcome. Regulations that are prescriptive as to
systems may entrench systems that perform well in relation to certain measures of
animal welfare but impede the uptake of systems that perform better for other
measures. An ethical matrix approach to defining animal welfare is a more
sophisticated and equitable approach to this multi-factorial question.
5Legislative definitions have varied over time, starting with a concern only to prohibit
cruelty and moving more towards including positive obligations to secure an animal’s
welfare.
Direct and indirect interests in animal welfare
As a subject of regulation, animal welfare is unusual in that no human being has a
“direct interest” in its outcome. To the extent that humans have an interest, it is
either an indirect interest in an animal’s welfare, or a direct interest in some other
fact about the animal that affects humans directly, such as the economic value of the
animal or its communicable disease status. These qualities may be related to animal
welfare but they are not the same thing.
Because neither animals themselves, nor authorised inspectors, nor concerned
others can (easily) bring a complaint over animal welfare in most circumstances,
much animal welfare regulation must rely on the substantial voluntary compliance of
those regulated.
Interests other than animal welfare
Animal welfare is only one of several interests when it comes to regulating activities
affecting animals. Other related interests include economics, the environment
(including environmental effects on animals, and animal industry effects on the
environment), planning and local government, human and animal health,
occupational health and safety, animal product food safety and quality, research,
tourism and entertainment. Realisation of these other interests will affect, and
sometimes impinge on, realisation of the interests of animal welfare.
International considerations
Under the WTO Agreement, it is not permitted for a country to discriminate on the
basis of “like products”. Two products will be “like” despite differences in “non-
product related process and production methods”. The problem for animal welfare
interests is that nearly all attempts to improve animal welfare are concerned with the
way in which the animals are treated, not with the end product. A nation is likely to
be in breach of the WTO Agreement if it has domestic laws purporting to prohibit the
sale of one particular animal product produced in a way that entails objectively poor
animal welfare, but treating without discrimination the sale of that same animal
product produced in a way that entails objectively good animal welfare, whether
domestically or internationally produced.
In today’s highly globalised world, a nation must often either reduce its animal
welfare standards to the lower levels of other countries, or see the applicable
domestic animal industry shrink or disappear. This significantly limits the nation’s
scope for regulation of domestic animal welfare standards.
6Multiple jurisdictions
Animal issues are largely regulated at a State and Territory level, except where there
is an international element to the issue, such as quarantine or trade, in which case
the Commonwealth Government has regulatory responsibility including over aspects
of treatment of animals and certification of animal or product health status. Such a
situation arises in relation to regulations covering the live export of animals from
Australia. It has been noted as a significant issue that the existing framework of
jurisdictional regulatory control over livestock welfare in Australia is in need of
significant revision to achieve an acceptable level of national consistency for
livestock industries.
Companion animals, and other domestic animals, while being regulated under State
or Territory legislation, tend to be regulated through ‘animal management’
requirements enforced by local government authorities. The same challenges
associated with inconsistency between jurisdictional regulations for many issues are
regularly experienced in the regulation of animal issues.
2.3 The Australian Animal Welfare Strategy
The scope of the AAWS is extremely broad: the care, uses and direct and indirect
impacts of human activity on all sentient animals in Australia. Uses of animals are in
six key animal sectors: livestock/production animals, animals used in research and
teaching, aquatic animals, companion animals, animals used for work, sport,
recreation and display, and animals in the wild. The stakeholders to be consulted
and involved are likewise extremely broad including all animal use industries and
animal welfare groups, and most others with an interest in animal welfare.
Factors shaping the animal welfare framework as identified in the AAWS include
policies, legislation/regulation, co-regulation/QA, national codes,
reporting/benchmarking, education/training, research/development, international
developments, and community expectations. Several of these are regulatory.
2.4 The case for regulating animal welfare
Regulation represents an imposition on people and must be justified to be made.
The case for regulating animal welfare might rely on the following propositions:
• that there is a need to protect the welfare of animals,
• that there is sufficient community wide agreement on basic principles about
animal welfare that provide a basis for regulation, namely that use of animals
is acceptable, as long as it is humane,
• that animal welfare can be genuinely promoted through regulation, and
• that the protection of animal welfare cannot be conveniently achieved in some
way other than regulating it, principally because private and third parties
cannot, through the legal system, satisfactorily vindicate those interests and
because the unregulated market is incapable of delivering that outcome.
72.5 Politics and regulation
Successive pressures to regulate animal welfare have stimulated successive
counter-reactions as industry has sought to limit the effect of regulation. Theories of
‘industry capture’ of regulators suggest that regulations favour the interests of
industry over the public. The extent to which regulations recognise the views of
industry or community groups depends, in part, on their respective capacities to
exert influence. Actual influence may differ from claimed influence. Issues like live
export and the content of codes have been openly contested by industry and interest
groups. From the regulators’ side, effective enforcement of regulation will depend on
the resources the government allocates to that activity.
2.6 Regulatory approach
There are two major approaches for government regulation in enforcement or
implementation: legal process and social process (Kagan, 2004, 221). The legal
process approach, also known as “command and control”, views regulations as
authoritative legal norms whose breach demands punishment. The social process
approach provides for cooperative government-regulated industry problem solving
and a remedial response to breaches.
The primary role for regulation is not to establish absolutes of right and wrong, but to
get the work of society done by refashioning human and other resources so that a
particular outcome will be achieved. Different issues may best be regulated at
different points along the legal-social process spectrum, reflected in a pyramid of
sanctions, from warning letters at the base to criminal penalty or license revocation
at the peak.
There is some confluence of opinion between industry and the animal protection
movement that regulation of animal welfare standards by breach leading to possible
criminal prosecution is the wrong regulatory frame, and that a more administrative
frame closer to the social process approach would achieve better animal welfare
outcomes.
2.7 Forms of regulation
Administrative vs criminal approach
There are at least two important implications of regulating compliance with animal
welfare standards through the framework of anti-cruelty offence legislation. Firstly,
because criminality is the peak of the pyramid of possible sanctions, it immediately -
and arguably inappropriately - escalates breach of animal welfare standards to that
peak. Second, if animal industry representatives, when making submissions on the
content of an MCOP, have in mind the possibility of prosecution for breach of that
MCOP, it may lead them to argue for lower standards of animal welfare in the MCOP
than they expected to be able to attain, in order to minimise the possibility of
prosecution.
8Regulation by licence
License systems create localised regulations that apply only to the licensees who
have ‘opted in’. Licensees have often made a significant commitment to the licensed
activity, through investment of capital or completion of education or training, and so
may have a large stake in complying with licensing regulation. Regulation may be
complex, and usually requires positive conduct, not just refraining from poor
conduct. Licensing is often a more resource intensive method of regulation for all
concerned. Some animal industries, including research, zoos, circuses and the live
export industry, are regulated in ways that include licencing.
Disclosure
Mandatory disclosure of information about a regulated entity, including any risks
relevant to those affected by its actions, is an interesting alternative to more invasive
regulation. Regulators may recognise that they do not have the resources to monitor
compliance themselves, but open disclosure permits the public, or consumers, or
shareholders to protect themselves. The AAWS aims to facilitate ‘the development,
collection and collation of national statistics on animal welfare standards as a basis
to benchmark Australia's animal welfare outcomes‘ as a move in this direction.
Labelling
Labelling is frequently mentioned in discussions about animal welfare regulation as a
way of informing consumers abut the animal welfare credentials of animal products.
Labelling is now under consideration by the European Union for a large range of
products according to objective scientific measures, and is currently in place through
a scheme jointly developed by the Australian Egg Corporation Limited and State and
Territory Governments for labelling the provenance of eggs.
Non-government standards
There is scope for voluntary compliance with standards produced by non-
government organisations or for industry self-regulation as a method of achieving
results that otherwise might require regulation. The RSPCA(UK)’s Freedom Foods
and the Australian Egg Corporation Limited’s Egg Corp Assured scheme are
examples. Voluntary compliance always raises the possibility that additional costs of
compliance may make the participant less competitive against non-participants.
Co-regulation
Co-regulation empowers those subject to regulation to find the most appropriate
ways for their activities to be performed in compliance with the required operational
outcomes and standards that the regulator either sets or negotiates with industry.
The AQIS Export Meat Program is an example where a co-regulatory framework has
reduced unnecessary structural requirements for compliance and allowed for the
development of validated but cost-effective approaches under a Quality Assurance
framework that meets the operational outcomes for food safety and other regulatory
requirements to export meat from Australia.
9Regulating the regulators
The substantial inroads of regulation into many activities poses the question of the
accountability of the regulators themselves. The AAWS project to encourage
national consistency of livestock animal welfare outcomes under jurisdictional
legislation is seeking to make regulation more efficient for the benefit of national
industries. Also, ministerial advisory committees such as the National Consultative
Committee on Animal Welfare to the Federal Minister, and the Animal Research
Review Panel to the NSW Minister, are a source of advice independent of the
regulators.
2.8 Five Considerations for Regulators
The Five Consderations for Regulators in animal welfare are derived from this paper
and seek to provide guidance for regulators equivalent to the guidance from the Five
Freedoms for animal handlers.
1. Understand the specific features of animal welfare relevant to regulating
animal welfare
2. Have a good reason for imposing additional regulations, taking into
account non-regulatory measures
3. Treat regulation of animal welfare and regulation of animal cruelty as
separate, though related, topics
4. Aim to move regulation of animal welfare away from the legal process
end of the spectrum and towards the social process end of the
regulatory spectrum
5. Consider the suite of regulatory forms for regulating animal welfare
3. Considerations for regulating animal welfare
Before looking at general regulatory theory, it is important to establish the specific
features of animal welfare that must be kept in mind while applying general
regulatory theory to it. Every issue that the subject of regulation - be it inner city
crime, climate change, the stock exchange or animal welfare - has its own features
peculiar to it, which must be understood in order to rise to the challenge of regulating
it sympathetically, meaningfully and effectively.
3.1 Definitions
The term “animal” is defined differently depending on the aims and purposes of the
legislation or other regulation. For example, the centrepiece animal welfare law in
New South Wales, the Prevention of Cruelty to Animals Act 1979 (NSW) (POCTAA),
defines animals as “(a) a member of a vertebrate species including any amphibian,
or bird, or fish, or mammal (other than a human being), or reptile, or (b) a crustacean
10but only when at a building or place (such as a restaurant) where food is prepared or
offered for consumption by retail sale in the building or place.” By contrast, an
“animal” is defined in section 528 of the Environment Protection and Biodiversity Act
1999 (Cth) as “any member, alive or dead, of the animal kingdom, other than a
human being”. The definition of “animal” in any regulation will be driven by the
purpose of that regulation and will differ according to purpose.
“Animal welfare” is another term that is capable of various definition. Definitions vary
depending on whether they are for scientific, legal or other purposes. An
authoritative basic scientific definition is from the World Organisation for Animal
Health (also known as the OIE) (OIE, 2008, 285):
“Animal welfare” means how an animal is coping with the circumstances in which it
lives. An animal is in a good state of welfare if (as indicated by scientific evidence) it
is healthy, comfortable, well nourished, safe, able to express innate behaviour, able
to have normal social contact with others of the same species, and if it is not
suffering from unpleasant states such as pain, fear, and distress. Good animal
welfare requires disease prevention and veterinary treatment, proper housing,
management, nutrition, humane handling and humane slaughter/killing. By scientific
convention, “animal welfare” refers to the state of the animal; the treatment that an
animal receives is covered by other terms such as animal care, animal husbandry,
and humane treatment.
The above definition of welfare combines elements of performance-based standards
(or the welfare outcome achieved) with systems-based standards (or the means by
which the welfare outcome is achieved). Performance-based standards include
whether the animal is “healthy, comfortable, well nourished, safe, able to express
innate behaviour …”. Systems-based standards include whether the animal has
“proper housing, management, nutrition …”. In regulatory enforcement terms, it is
often easier to assess systems-based standards (Is there a proper system for
providing food and water? Is the housing in good condition?) than performance-
based standards (Is the animal comfortable? Is the animal well nourished?).
An issue for regulators imposing systems based standards is validation of the animal
welfare outcome achieved. Unless the systems involved have been shown to deliver
good welfare outcomes under normal operational conditions, then it is possible for a
system to be compliant but ineffective at achieving the animal welfare outcomes
sought. In compliance terms, performance standards are all that matter in the final
analysis. Regardless of what system is used, do the animals have good welfare?
One approach is to aim for outcomes that aspire to those ideal states expressed by
the UK Farm Animal Welfare Council’s ‘Five Freedoms’.
There are limitations however to this more or less direct approach. Different
production systems give different emphasis to one or other of those five ‘outcomes’
statements (or welfare indices), still begging the question of which production
system is to be preferred on animal welfare grounds. As animal welfare performance
is a multi-factorial quality, comparing welfare across multiple management systems
11can be complicated. Where multiple animal management systems are used, among
producers in the same State or in Australia or between Australia and other countries,
it may be extremely difficult to compare their performance for regulatory purposes.
Freedom Foods’ assessment in the United Kingdom shows that on some aspects of
welfare (such as incidence of communicable diseases), free range systems for layer
hens perform more poorly than cage based system (RSPCA(UK), 2008).
Regulations that are prescriptive as to systems raise questions of equity and may
effectively entrench systems that perform poorly on some welfare indices whilst
impeding the uptake of systems that perform as well or even better on those or other
welfare indices.2 Gas stunning of poultry as a form of humane stunning, instead of
electrocution or other approved methods, is arguably an example of a more humane
practice, developed after the applicable Model Code of Practice for the Welfare of
Animals: Domestic Poultry 4th edn, (Primary Industries Standing Committee, 2002)
that does not have the benefit of express protection afforded by compliance with that
code. Those who seek to improve animal welfare over and above the minimum level
may find themselves in need of alternative mechanisms that do not disadvantage
them in comparison to those who seek to operate purely at the minimum level.
An ethical matrix system for evaluating animal welfare can help to deal with the
multi-factorial nature of animal welfare decisions. Whiting claims that the ethical
matrix can by used “to reflect the sensibilities of a pluralistic society in response to a
desire for a more integrated, transparent and comprehensive approach to develop
policy and regulator decisions” (Whiting, 2004, 1). He seeks to demonstrate that
claim by applying the ethical matrix system to the question of downer cattle transport
but the system could be equally applied to any animal welfare question. The ethical
matrix approach can best be summarised by a matrix (Mepham, 2000, 170):
2
The model codes of practice that in many ways ‘regulate’ agricultural practices are not regularly
amended. Advances in animal welfare practices may well differ from the conduct stipulated in the
codes. Nevertheless, it is important to note that the codes represent a type of ‘safe harbour’ (Sullivan
and Wolfson, 2008, 115f), in that compliance with them generally equates with a defence to an
alleged breach of an anti-cruelty statute. Seen in this way, as long as a new agricultural practice is
not in itself a breach of the prohibition on animal cruelty, it is still lawful to use that practice instead of
a practice in a code.
12Respect for: Wellbeing Autonomy Justice
Treated organism Eg, Animal Eg, Behavioural Telos [intrinsic
welfare freedom value respected
as sentient
beings]
Producers (eg, Adequate income Freedom to adopt Fair treatment in
farmers) and working or not adopt trade and law
conditions
Consumers Availability of safe Respect for Universal
food; acceptability consumer choice affordability of
(eg, labelling) food
Biota Protection of the Maintenance of Sustainability of
Biota Biodiversity Biotic populations
As the matrix suggests, the ethical matrix system seeks to identify the issues
relevant to significant parties affected by a specific decision or policy as an aid to
consideration of the issues.
Legislative definitions have varied over time, starting with a concern only to prohibit
cruelty and moving more towards including positive obligations to secure an animal’s
welfare. The world’s first anti-cruelty offence of animal welfare apparently came from
the Puritans of the Massachusetts Bay Colony, who enacted a “Body of Liberties” in
1641 that prohibited “any Tirrany or Crueltie towards any bruite Creature which are
usuallie kept for man’s use” (quoted in Sunstein, 2004, 252). Compare that to
section 5 of POCTAA today:
(1) A person shall not commit an act of cruelty upon an animal.
(2) A person in charge of an animal shall not authorise the commission of an act of
cruelty upon the animal.
(3) A person in charge of an animal shall not fail at any time:
(a) to exercise reasonable care, control or supervision of an animal to prevent
the commission of an act of cruelty upon the animal,
(b) where pain is being inflicted upon the animal, to take such reasonable steps
as are necessary to alleviate the pain, or
(c) where it is necessary for the animal to be provided with veterinary
treatment, whether or not over a period of time, to provide it with that
treatment.
This provision includes an offence in section 5(1) similar in flavour to the 1641
offence, in that it prohibits cruelty, but it also imposes positive duties on a person in
charge of an animal to take steps to alleviate pain (section 5(3)(b)) and to provide an
animal with veterinary treatment (section 5(3)(c)). POCTAA also imposes other
positive duties on a person in charge of an animal, most significantly, to “provide the
animal with food, drink or shelter, or any of them, which, in each case, is proper and
13sufficient and which it is reasonably practicable in the circumstances for the person
to provide” under section 8.3
Bernard Rollins (2004, 959-960), a professor of philosophy at Colorado State
University who has played a significant part in the debate over animal ethics in the
United States, suggests the reason for this shift:
A moment’s reflection on the development of large-scale research and high-
technology agriculture elucidates why these innovations had lead to the demand for
a new ethic for animals in society. In a nutshell, this new technology represents a
radically different playing field of animal use from the one that characterized most of
human history: in the modern world of agriculture and animal research, the traditional
anticruelty ethic grows increasingly less applicable. A thought experiment makes this
clear. Imagine a pie chart that represents all the suffering that animals experience at
human hands today. What percentage of that suffering is a result of intentional
cruelty of the sort condemned by the anticruelty ethics and laws? … only a fraction of
1% …
The shift in emphasis in the definition of animal welfare is reflected in the fact that
Australian legislation enacted up to and including 1986 tends to have names like
Prevention of Cruelty to Animals Act whereas each equivalent statute enacted from
1992 onwards has been titled Animal Welfare Act or Animal Care and Protection
Act. The following is a table of Australian animal welfare legislation in date order:
Name of Act Jurisdiction
Prevention of Cruelty to Animals Act 1979 NSW
Prevention of Cruelty to Animals Act 1985 SA
Prevention of Cruelty to Animals Act 1986 VIC
Animal Welfare Act 1992 ACT
Animal Welfare Act 1993 TAS
Animal Care and Protection Act 2001 QLD
Animal Welfare Act 2002 WA
Animal Welfare Act 2007 NT
An interesting feature of animal welfare definitions in legislation is that their unit of
concern is an individual animal. This contrasts with the way that most animals whose
welfare is regulated under that legislation – that is to say, animals in agriculture4 -
experience life, which is in a herd (or flock or other group). It may be that the more
meaningful unit is the herd rather than the individual animal, in terms of the animal
handling practices that affect welfare. Furthermore, it may be that, by seeking to
maximise the welfare of the herd, the sum of the welfare of the individual animals
3
A provision of this kind has even been seen as creating a kind of duty of care in relation to animal
welfare (White, 2003), though query whether this concept from civil law is sufficiently similar properly
to describe the legal effect of provisions like section 8 of POCTAA.
4
Estimates of the number of animals used in agriculture as a percentage of all animals with whom
humans interact are of the order of approximately 98 percent in the United States, and Australian
figures are probably similar (Wolfson and Sullivan, 2004, 206)
14within the herd would be greater than if one were to seek to maximise welfare of
each individual animal within the herd.
A final comment before leaving the issue of defining animal welfare. When the
definition is for the purpose of science, it may be important to include only what we
know scientifically about animal welfare. When it comes to regulation, however, we
must accept that we are at times obliged to make decisions in a state of imperfect
knowledge. We should therefore be taking a risk management approach. Requiring
codes of practice to be based only on objective scientific evidence, rather than
taking that risk management approach, runs the risk of making animals the default
victims of the current state of our knowledge or ignorance.5
5
See a strong criticism by Sullivan and Wolfson of the scientific approach taken to assessing animal
welfare only within the limits of present knowledge by both the New Jersey Department of Agriculture,
in developing standards for the care of domestic livestock, and the Appellate Division (the court) in
review of the Department’s decisions in New Jersey Society for the Prevention of Cruelty to Animals v
New Jersey Department of Agriculture (NJ Superior Ct App Div Feb 19, 2007) (Sullivan and Wolfson,
2008)
153.2 Direct and indirect interests in animal welfare
A subject of regulation, animal welfare is unusual in that no human being has a
“direct interest” in its outcome. To the extent that humans have an interest, then it is
either indirect interest in an animal’s welfare, or a direct interest in some other fact
about the animal that affects humans directly. To say that no human has a direct
interest in the welfare of an animal is to make the same point as saying that no
human has a direct interest in the welfare of any other human. Welfare is a quality
that is only experienced by the being to whom it relates.6 Nevertheless, one person
may have a profound interest in the welfare of another person, such as a parent’s
interest in a child’s welfare, or the mutual concern that spouses may have for each
other. Similarly, a person may have a profound interest in the welfare of an animal,
as often happens between a person and a companion animal or a farmer and their
livestock. In all of these cases, the interest in that other being’s welfare is indirect.
Equally, a person may have a direct interest in a quality of an animal that does
directly affect that person. A farmer has a direct financial interest in the economic
value of their livestock. Humans in close proximity to a bird with avian influenza have
a direct personal health interest in the communicability of that disease. A consumer
of animal products has a direct consumption interest in the quality of the product.
Equivalent examples between humans would include the business or financial
interest of an employer in the capacity for productive work in their employee, or the
health interest of people in close proximity to a person with a communicable
disease.
In each of these cases of indirect interest, the welfare of the object of the interest
may be relevant to the subject’s interest: a farmer may obtain a better price for an
animal that has experienced a high standard of welfare, a human may find their pet
dog healthier, happier and keener to show affection, an animal or person carrying a
communicable disease with a high standard of welfare may be more capable of
resisting infection. In each case, however, it is not the welfare of the being itself that
is the cause of direct concern but another quality. This is the case, even though the
other quality may be affected by the being’s welfare.
The philosophical turn this paper has taken has important ramifications, in practice
and in law. In practice, when most capable adults experience harm to their welfare,
they can take remedial action as well as, in appropriate circumstances, bringing a
legal complaint. By contrast, the capacity for animals experiencing harm to their
welfare to take remedial action in practice is often severely limited due to their lack
of autonomy. The capacity of animals to bring a legal complaint is non-existent due
6
The AAWS’s acknowledgement of the “increasing recognition in the community that animals have
an intrinsic value” (italics added) (DAFF, 2005, 5) is a corollary of the proposition that animals have a
direct interest in their own welfare.
16to the fact that our legal system does not recognise that animals have the right to
bring a complaint (or have one made on their behalf) due to a lack of standing.7
It follows that, because neither animals themselves, nor authorised inspectors, nor
concerned others can (easily) bring a complaint over animal welfare in most
circumstances, much animal welfare regulation must rely on the substantial
voluntary compliance of those regulated.
3.3 Interests other than animal welfare
As is virtually always the case when seeking to regulate an area, there are many
interests other than those immediately relevant to the area to be regulated that must
be taken into account and may compromise the outcomes sought. When regulating
occupational health and safety, other relevant interests include capacity of
employers to afford different options of systems of work, level of training and
education of the workforce, and international economic factors and laws.
So too with regulating animal welfare. Animal welfare is only one of several interests
when it comes to regulating activities affecting animals. Related interests other than
animal welfare include economics, the environment (including environmental effects
on animals, and animal industry effects on the environment), planning and local
government, human and animal health, occupational health and safety, animal
product food safety and quality, research, tourism and entertainment. Each of these
interests is a direct interest of humans with an importance distinct from animal
welfare, to be considered alongside humans’ indirect interest in animal welfare.
Realisation of these other interests will affect, and sometimes impinge on, realisation
of the interests of animal welfare8.
Very different animal welfare standards may relate to the same animal in different
animal use sectors. A rabbit may be kept as a pet, for sale in a pet shop, the subject
of scientific research, raised for its meat or fur in agriculture, transported by a
commercial enterprise, for sale in a livestock market, killed at an abattoir, on display
in a zoo, used as part of a performance, or living in the wild (this last setting not
being an animal use sector) (Radford, 2001, 123).
In response, Favre (quoted in Radford, 2001, 123) argues, “If we are willing to admit
that a rabbit is a rabbit regardless of who owns it or where it is being held, then it is
7
Note that, the mere fact that some humans, such as minors and those with severe learning
disabilities, do not have the practical capacity to bring a legal complaint does not stop them having a
right to bring a legal complaint. This right may be exercised on their behalf by a parent or guardian by
bringing a legal complaint on their behalf. There is no equivalent right for a human to bring a
complaint on behalf of an animal, even where the animal is considered to possess sentience.
8
This is explicit in the AAWS: ‘animal welfare is a complex issue. Science and ethics are both
essential. Science provides the body of evidence about animals that is used for moral and ethical
judgements about their welfare. At the same time, decisions about animal welfare are influenced by
cultural, social, economic and occupational health and safety considerations. Australia emphasises
the importance of stockmanship, the skills and responsibilities of animal carers and their role in good
husbandry and the delivery of acceptable animal welfare outcomes’ (DAFF, 2005, 6).
17apparent that only one set of standards is necessary to protect rabbits around the
world.” The fact that regulatory protections are “greater” for rabbits used in research
than for rabbits as pets leads Radford to remark that “Protection is more
complicated than it might initially appear” (Radford, 2001, 123). In the terms of this
paper, this situation may be explained by at least three factors. First, the definition of
an animal’s welfare may differ in different settings, for example, a pet rabbit will be
used to human contact and may depend on it as its primarily source of socialisation,
whereas a wild rabbit may find contact with humans deeply stressful. Secondly,
there are interests in addition to animal welfare that affect the regulation of animal
welfare. Thirdly, animal welfare regulation is only one factor influencing animal
welfare outcomes for animals.
3.4 Multiple jurisdictions
Animal issues are largely regulated at a State and Territory level, except where there
is an international element to the issue, such as quarantine or trade, in which case
the Commonwealth Government has regulatory responsibility including over aspects
of treatment of animals and certification of animal or product health status. Such a
situation arises in relation to regulations covering the live export of animals from
Australia.
Companion animals, and other domestic animal issues, while being regulated under
State or Territory legislation, tend to be regulated through ‘animal management’
requirements enforced by local government authorities. The same challenges
associated with inconsistency between jurisdictional regulations for many issues are
regularly experienced in the regulation of animal issues as well. The significant
degree of traffic of animals, whether domesticated or wild, across borders is just one
common situation raising the issue of inter-jurisdictional differences.
It has been noted as a significant issue that the existing framework of jurisdictional
regulatory control over livestock welfare in Australia is in need of significant revision
to achieve an acceptable level of national consistency for livestock industries. While
each jurisdiction has anti-cruelty legislation, they all differ in their terms. An important
example of an issue on which the anti-cruelty statutes differ is the way in which each
statute deals with the national model codes of practice (MCOPs).9 MCOPs are key
documents in the regulation of animal welfare in Australia, setting out detailed
procedural guidance on acceptable practices for a wide range of animals and
settings. While some statutes make it an offence to breach an MCOP10, others make
the fact of compliance or non-compliance with an MCOP admissible as evidence in
proceedings under the statute for failure to comply with the statute11, while others
still make compliance with an MCOP a defence to a charge of cruelty12. In a recent
case involving live export of sheep, an exporter of sheep was found to have
9
Eighteen MCOPs have been commissioned by the Primary Industries Ministerial Council (or its
predecessor). Topics for MCOPs include the pig, animals at saleyards, and transporting of cattle.
10
For example, Animal Care and Protection Act 2001 (QLD), section 15.
11
For example, POCTAA, section 34A.
12
For example, Animal Welfare Act 2002 (WA), section 25.
18breached Western Australian anti-cruelty legislation, however the operation of that
legislation was found to be rendered invalid because it was found to be inconsistent
with applicable Commonwealth legislation regulating the same conduct13.
In the case of all anti-cruelty statutes, MCOPs are only incorporated if specifically
referred to in the statute or subordinate legislation under the statute. So, different
jurisdictions may, and do, refer to different MCOPs, while leaving other MCOPs
unrecognised in that jurisdiction’s legislation.
It is not just the terms of the regulations that differ across jurisdictions. It is also the
regulators, and the manner in which regulations are implemented and enforced. So,
even when the terms of regulation are the same, or at least consistent, the manner
in which they are regulated (including the resources devoted to regulatory activities)
may produce different results.
The significance of this issue is recognised in the AAWS, which includes an
objective to “facilitate improved consistency of legislation across states and
territories for improved and sustainable animal welfare outcomes” (DAFF, 2005,
p.11) The use of the terms “consistency” and “harmonised approach” in the AAWS is
a reflection of the difficulty of achieving the outcome of uniformity in regulation
across the relevant Australian jurisdictions.
3.5 International considerations
The World Organisation for Animal Health, the OIE, has developed outcomes
focused animal welfare ‘guidelines’ rather then prescriptive ‘standards’ for use by its
174 member countries in section 3.7 (Animal Welfare) of its Terrestrial Animal
Health Code (OIE, 2008). These guidelines are intended to help countries address
animal welfare risks and seek equivalent welfare outcomes rather than impose
restrictive measures on nations of varying levels of economic development.
International law regulating economic relations, under the 1994 Marrakesh
Agreement Establishing the World Trade Organisation (WTO Agreement), has a
major effect on animal welfare considerations, not just in international trade, but
domestically in each member nation, including Australia. The relevant provisions are
Articles I, III, XI and XX of the General Agreement on Tariffs and Trade, which is
incorporated into the WTO Agreement. The effect of these provisions is that it is not
permitted for a country to impose discriminatory trade restrictive measures on “like
products”. In accordance with WTO jurisprudence, two products will be “like” despite
differences in “non-product related process and production methods”.
13
Department of Local Government & Regional Development v Emanuel Exports P/L and others
(Magistrates Court of Western Australian, 8 February 2008) but note that the Western Australian
State Solicitor has subsequently advised that the Magistrate was incorrect in finding that the Western
Australian legislation was rendered inoperative. A similar issue of inconsistency between
Commonwealth and State legislation was raised, but not decided, in Song v Coddington (2003) 59
NSWLR 180.
19The problem for animal welfare interests is that “nearly all attempts to improve
animal welfare are concerned with the way in which the animals are treated, not with
the end product of meat, eggs, fur, etc.” The upshot of this is that, as far as the WTO
Agreement is concerned, “an egg is an egg … and tuna is tuna”, regardless of the
effect of the method of production on the welfare of the animal. Accordingly, a
country is likely to be in breach of the WTO Agreement if it has domestic laws
purporting to prohibit the sale of one particular animal product produced in a way
that entails objectively poor animal welfare, but treating without discrimination the
sale of the same animal product produced in a way that entails objectively good
animal welfare, whether domestically or internationally produced (Stevenson, 2003,
4-5).
This means that a country cannot prohibit or in other ways restrict the import or
domestic sale of an animal product solely on the grounds that it has been produced
in a way that it finds objectionable on animal welfare grounds14. Most improvements
in animal welfare add to the eventual cost of the animal product. While it is open to a
country to prohibit certain animal production methods on animal welfare grounds
within its borders, the animal products produced according to higher animal welfare
standards are likely to cost more than those produced to lower standards elsewhere.
The likely result is that domestically produced animal products will be more
expensive in comparison with foreign products produced to lower standards, leaving
them uncompetitive on price, both domestically and internationally.
Given the highly globalised nature of today’s world, the invidious choice for such a
country is either to reduce its standards to the lower levels of other countries, or see
the applicable domestic animal industry shrink or disappear. The upshot is that
countries have a severely limited scope to regulate animal welfare standards
domestically. Radford describes this “very real dilemma” thus:
[should] proponents of improved animal welfare … in order to be ethically consistent,
always seek the highest possible domestic standards of protection even though to do
so may encourage manufacturers and producers to move their activities to other
countries, with the result that animal suffering is simply exported to jurisdictions
where the standards may be significantly less, or even non-existent? Or is it better to
impose standards with which commercial undertakings can live, albeit that this
means compromising the interests of animals [domestically] (Radford, 2001, 120)?
On this question, it is noteworthy that the AAWS “provides a framework for
sustainable improvements in animal welfare outcomes, based on scientific evidence
and social, economic and ethical considerations” (DAFF, 2005, 7). Through the
references to “sustainable” improvements based, among other things, on “economic”
considerations, as well as the statement that the AAWS ‘builds on historic and
14
Under the Sanitary and Phytosanitary Agreement of the General Agreement on Tariffs and Trade
(known as the SPS Agreement), trade restrictive measures may be imposed on products that are
shown to carry an animal or human health risk that exceeds the importing country’s ‘acceptable level
of protection’. Animal welfare is not considered as an animal or human health risk, for the purposes of
the SPS Agreement.
20existing animal welfare arrangements in Australia’ (DAFF, 2005, 5), it appears clear
that the AAWS has declared a preference for the second option described by
Radford.
The dilemma described above may paint too pessimistic a picture, at least in some
cases. Clearly, there are many factors other than animal welfare that affect product
price, such that a more expensive animal welfare component of the price does not
necessarily render the product uncompetitive overall. Furthermore, consumer
preference for products embodying better animal welfare standards can sometimes
overcome price differences. Responding to the economics of globalisation,
corporations may indeed move aspects of their operations to countries with lower
general production costs but they may require, through private sourcing
arrangements, that their animal products be produced to standards of animal
welfare at least comparable to the country of eventual sale, so that they can badge
themselves as animal welfare friendly.
4. The Australian Animal Welfare Strategy
This section of the paper looks that the specific regulatory orientation that the AAWS
proposes in relation to animal welfare.
The AAWS covers “all sentient species of animals” (Australian Department of
Agriculture, Fisheries and Forestry (DAFF), 2005, 7), a definition that differs from the
definition of ‘animal’ in the various State and Territory primary animal welfare
statutes.
Interestingly, the AAWS contains no explicit definition of animal welfare. This may be
in recognition of the different definitions of animal welfare that may be appropriate in
different settings. The AAWS vision is that ‘the welfare of all animals in Australia is
promoted and protected by the development and adoption of sound animal welfare
standards and practices’ (DAFF, 2005, 7). In focussing on delivering standards and
practices for the humane treatment of all sentient animals, the vision advances a
systems-based, as opposed to performance-based, concept of animal welfare.
It would be hard to identify an animal welfare issue in Australia that does not fit
within the scope of the AAWS. The scope of the AAWS is the care, uses and direct
and indirect impacts of human activity on all sentient animals in Australia (DAFF,
2005, 7). Uses of animals are in “six key animal sectors: livestock/production
animals, animals used in research and teaching, aquatic animals, companion
animals, animals used for work, sport, recreation and display, and animals in the
wild” (DAFF, 2006, 6). Animals in the wild includes “native and introduced wildlife
and feral animals” (DAFF, 2005, 7).
The constituency of, or stakeholders in, the AAWS is extremely broad. AAWS
processes aim “to engage all animal use industries, including the livestock
industries, the aquaculture and fishing industries, companion animal carers and the
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